Justice For Nolan Klein Dot Com
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On September 20, 1993, Investigator Tim Ford signed the following affidavit: 

I, TIMOTHY FORD, being first duly sworn, deposes and says: 

1. That during the investigation and trial of NOLAN EDWARD KLEIN, I was the main investigator on the case working with KLEIN’s counsel, Shelly O’Neill; 

2. That I recently reviewed the trial file of MR. KLEIN, and did not find anything to indicate that Mr. Petty, an employee of the Abbey Hotel in Sparks, Nevada, was contacted regarding KLEIN’s case; 

3. Although there was no evidence in the file that Mr. Petty had been contacted, this does not necessarily mean that he was not so contacted; 

4. That I wrote a letter on August 20, 1993, to Ms. Brown stating these facts, and incorporate such statements within this affidavit, and further declare that I wrote the letter attached to this affidavit. 

I, TIMOTHY FORD, do hereby swear under penalty of perjury that the assertions of this affidavit are true. Further affiant sayeth not.

June 21, 1993, Sparks Tribune: 

RAPIST’S SISTER PUSHES CASE AGAINST DEFENDER

Five years after a brutal rape at a Sparks shoe store, allegations are still being traded between the accused’s sister and his former lawyer.

Tonja Brown, sister of convicted robber and rapist Nolan Klein, this morning held a vigil outside the state Public Service Commission in Carson City, where Klein’s former lawyer now works.

Brown claims Shelly O’Neill, a former chief deputy public defender, did a shoddy job of representing her brother and that O’Neill should be prosecuted for perjury for saying otherwise in a post-conviction court hearing.

Klein is innocent, his sister vehemently contends.

Brown protested this morning outside O’Neill’s office, sitting on a lawn chair and holding a picket sign for passers by to see. She said her protest was to mark the two-year anniversary of Klein’s appeal hearing in which O’Neill testified she’d done her best to defend Klein. Brown says that is an out-and-out lie.

Meanwhile, O’Neill says if anyone should be prosecuted it’s Brown, for stalking her. And, she says, she did her best to defend Klein despite overwhelming evidence of his guilt which included the testimony of the two teenage shoe store clerks who were robbed and raped at knife point.

“I busted my butt for Nolan Klein,” O’Neill said. “If I committed perjury it wouldn’t change the fact that he raped those two girls.”  

Klein was convicted in January, 1989, for the May, 1988, robbery of the Payless Shoe Store at 543 E. Prater Way. 

One of the clerks was also raped in the incident. Both identified Klein at trial as their knife-wielding assailant. He was found guilty and sentenced to two life prison terms plus 40 years. 

Brown characterizes the case as one of mistaken identity. She says O’Neill failed to pursue leads that another man may have committed the crime. Klein and the other suspect strongly resemble each other, she said. O’Neill also failed to tell the jury that Klein had an alibi the night of the crime, Brown contends.

“There is no doubt in my mind he is innocent,” Brown said.

The two victims said otherwise, picking Klein out of a lineup, O’Neill said.

“There was nothing I could do to get around the photo ID,” she said. “After all was said and done the jury believed those two little victims.”

In addition to today’s demonstration outside O’Neill’s place of work, Brown attends public meetings where O’Neill is scheduled to speak, heckling her and yelling out insults from the audience, O’Neill said. And when O’Neill was a finalist for a Reno municipal judgeship, Brown wrote a vicious letter to the Reno City Council members who would decide which lawyer to appoint to the vacancy on the bench.

The former public defender, now general counsel for the PSC, says she’s waiting for the state’s new stalking law to go into effect. She’s already contacted the Carson City District Attorney’s office about the matter.

“I’m going to file stalking charges as soon as it becomes law,” she said.

O’Neill says that, in a way, she understands the family’s reluctance to believe their son and brother is not a violent rapist.

But the time has come to face facts instead of trying to pass the buck, O’Neill said.

“This is a sick case of transference,” she said. “They just refuse to believe that Nolan did it.”

There is only one person to blame for Klein’s lengthy prison term, O’Neill said.

“I’d like to see Tonja Brown look in the mirror and say who put Nolan Klein in prison – Nolan Klein,” she said. “You’d think after a year or two or three or four or five she would have gotten past it.” 

I did not let this rest. I wrote a letter to the editor when the laws were going into effect:

WHAT HAPPENED HERE??? In the June 21 edition, Shelly O’Neill has made me out to be some kind of crazy woman. She said I would attend public meetings where she was scheduled to speak, heckling her and yelling out insults from the audience and sent Reno City Council members vicious letters.

Yes, I did attend the meeting (one and only) in which Shelly was being considered for the judgeship and I did send letters and in those letters was Shelly’s testimony at an evidentiary hearing in which I accused her of lying in court and presented actual evidence to contradict Shelly’s own sworn testimony, and having full knowledge of this information, I could not see her (or anyone else) being considered for a judgeship, and I presented this and read a copy of the letter to the council and audience. After the meeting I was commended by some of the audience and two members of the council.

If I had done as O’Neill claims, I would have been asked to leave, but I wasn’t. O’Neill said, “If I committed perjury.” What she doesn’t say is that I filed perjury charges against her, and the Reno Police Department felt she had committed a crime and sent it to the district attorney’s office, who has not investigated, but will call me with the decision.

O’Neill says I’m stalking her because I protested at her work. If O’Neill is so afraid of me, then why would she have come out of her work and talked with me for approximately 30 minutes?

~ Tonja Brown, Carson City .

The perjury complaint sat in the office of the NEW DISTRICT ATTORNEY, DOROTHY NASH HOLMES, until the statute of limitations ran out. 

 

The Nevada Supreme Court dismissed Nolan's appeal. We had to go on to Federal Court. 

In December, 1994, the Federal Court dismissed the writ of habeas corpus that Nolan had filed and returned it to the lower court, Judge McGee, for further findings. 

As a result of the habeas corpus filed by Nolan, Judge McGee had been ordered to rule on 23 unexhausted counts. From what I could tell this meant that Judge McGee had failed to address issues that the Federal Court could not rule on until Judge McGee took a position. 

In other words the Federal Court couldn’t tell him he was wrong until he actually said something.

 

In August 1995, Judge McGee again dismissed the appeal that was sent back to him.  Again McGee would just go through the motions and not address the issues on the 23 grounds.  

I recall he based his ruling on all the evidence that would have cleared Nolan of the crime should they have been raised at the 1991, post-conviction hearing. I knew that's how it had been. 

How else did we know about the prime suspect, Ricky Lee Zarsky, and the eyewitness who wrote down the license plate number of the car -- and all the other evidence that supported his innocence? It came from this hearing.

I was so angry that I asked to view the evidence again. It was here that I discovered that someone had opened up Nolan's DNA kit that had been sealed with red evidence tape.  I had the photographs and photocopies from April 4, 1989, proving that they were sealed.

 

I would file a police report and it would be assigned to Reno Detective Dave Jenkins.  Jenkins had promised me that he would not file his findings with the DA until I viewed the evidence one last time.  He had lied.  

He had filed it before I discovered the filters were missing. I then contacted Jenkins' supervisor, Detective Niles Carson.  He said he would look into the matter.  I never heard from him so I would have to file a brand new police report and I sent it certified, return receipt requested, in January, 1996. This time I did not receive a case number like I did in '95 on the TAMPERING OF THE DNA KITS. 

 

In November, 1995, I would file on behalf of Nolan a motion detailing my discovery of the missing cigarette filters and the opening of the DNA kits. 

I waited until February before I called the Reno Police Department to check on the status of my new 1996 complaint.  I was told that there wasn't one, only a closed case from 1995, the opening of the DNA kits.  

I then contacted Chief of Detectives Niles Carson to find out what happened to my complaint.  He informed me that my complaint was sitting on his desk.  

I asked him what for?  He said that after our conversation he had contacted Judge Mills Lane who was once the District Attorney. Lane had instructed Carson to wait until after he, Lane, became head of the courts.   Carson said that he had written a letter to Judge Lane about my complaint. I asked him for a copy of it because we then had new attornies from the Innocence Project out of New York and they wanted a copy of it.

 

I received a copy of the letter Carson had written to Lane.  In this letter it shows how they took my new 1996 complaint and put it onto the closed 1995 case.  Carson's letter also informs Lane that he would probably be getting a phone call from me and Lane did.  

When I asked him about the letter he said that he was going to walk it down to Judge Charles McGee and for me to call the judge.  I did.  McGee wanted to meet with me on the condition that District Attorney Dick Gammick joins us.  

Gammick declined and McGee refused to meet with me.

Funny thing that Nolan wasn't even invited to the meeting had there been one.  Nolan would file another petition to find out what happened to the DNA. Back into Judge McGee's court.  

 

In the meantime I had caught the attention of the media.

TAMPERING:  Nolan Klein has been in state prison since he was found guilty of robbery and assault in early 1989, but irregularities and unorthodox procedure associated with the prosecution of his case have troubled many people to this day. Now both the renowned Benjamin N. Cardozo School of Law in New York City and a national ACLU official are interested in taking a closer look at things.

It appears that certain evidence, stored in an envelope box from which the evidence could be taken for future DNA testing, has been tampered with. Especially intriguing are two filter tip cigarette butts from which the saliva on the filters might later be tested to determine blood type (DNA). But it seems that the filters have been mysteriously removed from the cigarette butts, with no explanation, making such DNA testing impossible.

Indeed, I’m told that a report will be forthcoming shortly from detective Jenkins of the Reno Police Department in which mention will be made of the fact that evidence in this case has been tampered with. Meanwhile, Klein’s sister, Tonja Brown of Carson City, has tried her best to interest DA Richard Gammick in this travesty, but without success.

The Innocence Project could not trust the evidence to be tested and that ended their involvement with us.

On April 7th, 1998, we had a hearing. The DA's office conceded the filters were gone, but, they didn't know what happened to them. Plater could not seem to locate the supervisor of the Evidence Room, even though he was right there in the courthouse.  The only thing that was never established was what year the filters were taken off the cigarette butts and which DA had been responsible for their chain of custody.

Judge McGee dismissed our petition.  McGee said we couldn't prove that the DNA existed on the filters. Nolan filed a motion for reconsideration at the same time that we filed a motion to have Joe Plater withdrawn as counsel.

Nolan was able to prove, with the State's own witnesses and testimony, that the DNA could be found, but that they weren't tested. The motion also covered the fact that Nolan's Public Defender, Shelly O'Neill, committed perjury at the 1991 post-conviction hearing.

In August, 1998, Judge McGee dismissed our petition again, stating, "Now Mr. Klein is alleging that Mr. Plater is ineffective for not spending time with him prior to the hearing and not presenting evidence at the hearing."

Judge McGee decided this even though District Attorney Gary Hatlestead did not file an opposition, in effect conceding to everything Nolan claimed was true. 

Gary Hatlestead couldn't argue the motion for reconsideration because it was the DA office's own evidence.

Mr. Plater withdrew as counsel, and then on July 13, 1998, went to work for the Assistant District Attorney, Gary Hatlestead, weeks before Judge Mcgee made his decision.

This was appealed to the Nevada Supreme Court and they upheld McGee’s decision.

In 2000 I instructed an attorney who was representing us on our book, To Prove His Innocence, to go and view the evidence per the manuscript.  While the attorney was viewing the evidence, she happened to notice the index tracking cards.  These cards indicated that the District Attorneys over the years have been into Nolan’s evidence after trial and notations were made about the missing evidence.  Nolan filed a petition in McGee’s court to find out what was happening to his evidence.  

McGee dismissed the petition and the Supreme Court upheld McGee’s decision.

About 2002,  while an investigator was viewing the evidence, he noted that the cigarette butts appearance had changed.  It would appear that the cigarette butts had grown in size.  A petition was filed again with Judge McGee. McGee and the Supreme Court dismissed this petition.

During this time Washoe County District Court Judge James Hardesty was running for re-election. I contacted him.  I asked him as head of the court if he needed to find out what was happening to Nolan’s evidence.  Once Hardesty found out that he was unopposed, he never followed through.   

The Nevada Appeal carried the following story:

SUPREME COURT REJECTS APPEAL OVER DNA EVIDENCE IN RAPE CASE

~ Geoff Dornan, Appeal staff writer

The Nevada Supreme Court on Tuesday rejected an appeal based on arguments the Washoe County Sheriff’s Office mishandled and lost DNA evidence an inmates says could have cleared him.

Nolan Klein filed the petition for a writ of habeas corpus more than three years ago, charging that cigarette butts from the crime scene were missing from the evidence. He maintains new DNA testing of those butts could prove someone else was at the crime scene in Sparks and potentially clear him.

  Klein was convicted of robbery, burglary and sexual assault in March 1989, sentenced to two life terms plus 40 years in prison.

The petition sought dismissal of the charges or a new trial because of the missing cigarette filters.

His sister Tonja Brown said Tuesday the ruling wasn’t a surprise.

“We didn’t expect them to do anything else because, by doing this, they would open a Pandora’s box for every other inmate who ever had evidence stored by the Washoe County Sheriffs,” she said.

She said all the issues are raised in Klein’s federal court appeal.

“The record before this court reveals that Klein did not claim that DNA testing of the cigarette filters might have exculpatory value until well after the filters were discovered missing in November of 1995, when testing was no longer possible,” says the opinion signed by justices Miriam Shearing, Bob Rose, and Nancy Becker.

They also stated that Klein failed to show he was prejudiced by disappearance of the filters and failed to show bad faith on the part of the state.

They said even if the cigarette filter showed a different DNA signature, Klein failed to show that the verdict would have been different since “the record of Klein’s trial reveals substantial, independent evidence establishing Klein’s guilt beyond a reasonable doubt.”

In 2008 Nolan appeared before the State of Nevada Pardons Board.  He asked to have his life sentences changed to a number of years because the Parole Board has made it perfectly clear that, unless an inmate admits guilt, they will never be released to the streets.  

Nolan has refused to admit guilt for a crime he did not commit. At the same time I was working on getting a proposed bill on DNA and a case study on misidentification through positive identification and eyewitness testimony.  

Advisory Commission on the Administration of Justice, September 22, 2008:

 

Tonja Brown had suggestions for the Advisory Counsel for the Prosecuting Attorney’s DNA evidence. She wanted an amendment added to the proposed BDR, Exhibit L.
.

Chair Hardesty requested that Ms. Brown submit in writing the points she wanted added to the BDR. He requested she give it to the Clerk so it could be forwarded to Commissioner Kohn and others who were working on the language.

Ms. Brown read parts of the papers she submitted for inclusion in the minutes, Exhibit L. 

She recommended a case study if DNA samples had been lost or were not available.

Chair Hardesty said DNA would be discussed in the October meeting. He said the photo identification issue had been discussed with Mr. Kohn. He said there may be some changes made by the Justice Department concerning the policies regarding identification practices. He said there had never been any empirical testing of the photo identification policies advocated by the Justice Department in 1999. 

He said the Sheriffs’ and Chiefs’ Association indicated those policies were being utilized throughout the State. Chair Hardesty suggested the subject be held until the testing by the Justice Department was completed.

Ms. Brown said she submitted a proposed bill summary on DNA sometime ago and wanted to Amend Appendix A to include funding from the counties. She said if there was no money available, the inmates could incur all the costs. She said if they did not have the money, perhaps they could receive some of the grant money like Arizona had.

Chair Hardesty said the statute had to be amended to qualify for the grant money.

http://www.leg.state.nv.us/74th/Interim_
Agendas_Minutes_ Exhibits/Exhibits/ AdminJustice/E092208L.pdf

That evening the local television news station, Channel 4, aired my interview regarding my proposed DNA bill. I would learn while watching the news segment that the Washoe County District Attorney was interviewed and had aired the answers to our questions about what really happened to the missing filters and who opened up the DNA kits.  

Gammick would proclaim that they opened it up and tested it.  OMG!!!!!!  Did I really hear what he said?  Then my phone started ringing off the hook. Gammick knew that the DNA was tested and they have been hiding the test results ever since.  

I informed Nolan’s attorneys of what had just aired.  They immediately took action by way of the upcoming Pardons Board.  I personally know Gammick and he is the type to be screaming at the top of his lungs, I TOLD YOU SO! had the DNA matched Nolan.  

This has never happened. Why?  Because the DNA didn’t match!

On October 29, 2008 Nolan would appear before the Pardons Board. 

BEFORE THE PARDONS BOARD
OF THE STATE OF NEVADA

In re: Nolan Klein, #28074
________________________/

Statement in support of Pardon

Comes now, Nolan Klein, by and through his counsel, Robert R. Hager, HAGER & HEARNE, and states the following in support of his request for pardon before this Board.

I. 
The medical records support that Mr. Klein is in declining health. The medical records of Nolan Klein for the year 2007 - 2008 demonstrate the health problems from which he suffers and which have radically changed his quality of life. (See, Exhibit 1 attached hereto)  Mr. Klein suffered an MRSA staph bacterial infection introduced to his system while in prison last year.  The medical records indicate that he almost died and that the effects of the infection have caused memory loss, balance impairment and substantial joint pain.  The prognosis is that Mr. Klein will require double hip replacements in the near future.

Mr. Klein is presently being treated for the consequences of the MRSA infection for which he spent ten weeks hospitalized at the end of 2007 and the beginning of 2008.   He has arthritis that will significantly disable him at its current rate of progress within the next two to three years.  He is treated presently for high blood pressure and hemochromatosis causing liver damage and severe arthritis.  He presently is required to use a cane to ambulate.  He cannot go up stairs without assistance.

Upon release from prison, Mr. Klein will qualify for medical care from the Veterans Administration.  He is a veteran with an honorable discharge. 

II.
Mr. Klein has maintained his innocence.
Mr. Klein was convicted of robbery of $198.00 and sexual assault of one person.  Although Mr. Klein has maintained his innocence since he was first informed of the charges against him, Mr. Klein does not harbor resentment or animus toward the victims.  He believes that they testified as they believed.  Mr. Klein has analyzed the events of his conviction and can see that the circumstances and occurrences could have easily led the victims to believe that the police had captured the perpetrator and that because of that capture, believed his guilt.

DNA evidence existed in small quantities beyond the capability of the testing technology extant in 1988 when he was convicted.  When the technology to test the residual DNA from discarded cigarette butts finally existed, the cigarette butts in the evidence room at Second Judicial District Court were missing and not available for testing. 

The detective on the case and, recently, the District Attorney of Washoe County have stated that the evidence was tested.  

No results of the alleged testing were ever given to Mr. Klein or his attorney at any time since 1988 other than confirming his blood type.
 
Immediately after his trial in April of 1989, Mr. Klein’s sister examined the evidence and the envelope containing the cigarette butts and the other samples of DNA were sealed and in tact.  When she returned to examine the evidence in August of 1995, the envelope was no longer sealed and the filters from the cigarettes were missing.  

The Innocence Project which had agreed to do the testing for Mr. Klein finally refused because the integrity of the DNA evidence was compromised.  When the evidence was again examined after 2000 by the Federal Public Defender, relatively new unfiltered cigarettes were in the evidence envelope.  

(Documentation of some of the DNA evidence discrepancies is found in Exhibit 2 attached hereto.)

Mr. Klein sought to have the DNA establish the innocence he has maintained, but was denied this right.   Over the last several years the importance of DNA evidence in exonerating persons who were identified by eye witness testimony cannot be understated.  Mr. Klein was denied the right to test the evidence and no tests were ever made available if, as the District Attorney claims, they were conducted.

III.
Mr. Klein has accomplished both a trade and charitable work while incarcerated.

Mr. Klein has two or three minor disciplinary actions against him during his incarceration since 1989.  He can explain each of those as circumstantial and not indicative of any violations by him of actions while incarcerated. 

Not only has he been an exemplary inmate, but he has also completed his paralegal certificate while incarcerated and donated his time for the Vietnam Veterans and been involved as the inmate to raise the most funds to fight breast cancer.  Those certificates are included as Exhibit 3 attached hereto.

IV.
Mr. Klein is ready to re-enter the workforce and the community.

Mr. Klein has been assured employment by various law offices including Hager & Hearne based on his previous legal work; Mr. Klein’s family who has supported him while he was incarcerated, will also furnish him a home when he is released.
 
As mentioned earlier Mr. Klein qualifies for Veterans benefits for health care and disability, if necessary.  Mr. Klein will be able to provide for himself and re-enter the community without being a burden to it.

WHEREFORE THE ABOVE-STATED REASONS, Nolan Klein respectfully requests that the Pardons Board release him immediately for time served of more than twenty years.

DATED this _______ day of

Respectfully submitted,
HAGER & HEARNE

Mr. Hager appeared before the Pardons Board.  Chief Justice Gibbons asked ADA John Helzer about the DNA, Helzer said that Nolan could litigate it.  

The Pardons Board stopped and Justices Saitta, Cherry, Gibbons, Hardesty, Parraguirre, Maupin, Attorney General Katherine Cortez-Masto and Governor Jim Gibbons denied Nolan a pardon.  However, they did give other inmates whose crime was murder some action.
 

This article appeared the next day:

And the board denied Nolan Klein, who was convicted of sexual assault some 19 years ago. Attorney Robert Hager raised serious questions about the evidence in that case saying the district attorney and sheriff’s office have allowed cigarette butts with DNA evidence on them to disappear from the evidence despite Klein’s request they be maintained so they could be tested.

Klein has always maintained he is innocent of the crime.

Hager said the disappearance of the evidence is especially serious in the wake of a recent TV appearance by Washoe District Attorney Dick Gammick in which he told an interviewer Klein’s evidence was tested.

“Where is that report?” Hager demanded, saying it could exonerate Klein of the crime. “It would either be exculpatory or incriminating.”

MINUTES OF THE ADVISORY COMMISSION ON THE ADMINISTRATION OF JUSTICE,   
November 21, 2008:

Flo Jones opened with comments about the preservation of biological evidence. She was concerned it started with conviction. She said serious concern needed to occur from the time a crime scene existed. All biological evidence needed preservation. She supported information from Tonja Brown regarding the bill draft for DNA. She supported all that Ms. Brown had proposed. Ms. Jones said she heard Justice Hardesty apologize to Ms. Brown for not having taken care of the evidence or not doing his job as a judge with the evidence. 

The Advisory Commission on the Administration of Justice, November 21, 2008:

Page 30 said they were discussing the DNA evidence in Ms. Brown’s brother’s case. Ms. Jones said there had to be more than just information that protected the State. She said Nevada needed to stop being one of three states that did not allow someone to pay for their own DNA testing to exonerate themselves. She requested the DNA draft be inclusive and take into consideration all that Ms. Brown discussed with the Commission.

Chair Hardesty contested and disputed the suggestion he apologized to Ms. Brown or anyone else over his supervision of DNA evidence. He said he had no conversations with her about that subject nor was he ever a trial judge in any case involving any matter she ever discussed with him involving the supervision of DNA evidence. He said Ms. Brown made contentions here that other judges who supervised cases involving her brother had issues regarding the handling of evidence. He said he was never a judge in those cases.

Ms. Jones apologized. She said she was present at a conversation in the hallway of the 2007 Legislative session when she heard him apologize to her. Chair Hardesty said he apologized for not returning Ms. Brown’s telephone call.

Tonja Brown stated for the record that Ms. Jones was correct and there was documentation that was given to Justice Hardesty, or Judge Hardesty, some years ago and she could present a copy to the Commission. She said he was aware of the problem. She continued her discussion on the biological evidence. She said there were members of the Advisory Commission who were not privy to the current chain of events of her proposed recommendations for the draft for the preservation of biological evidence. 

Ms. Brown said on September 22, 2008, in a press conference, Washoe County District Attorney Dick Gammick said he opened DNA kits and tested the DNA evidence. She said no results were ever turned over to her. Ms. Brown referenced the material she gave the Commission Exhibit K. 

She said there had been problems with evidence as far back as Mills Lane. She said the recommendation she was giving was a chance for everybody, inmates, to have DNA testing whether the courts decide yes or no. She said in November it appeared a case had gone to the Supreme Court to decide whether post-conviction DNA testing was a Constitutional right. Ms. Brown said her recommendations were very good recommendations. 

The recommendations were to secure the index tracking cards. She said in Washoe County the index tracking cards indicated when and who took evidence, when it was checked out, and by whom. She referenced a letter from the law office of Hager & Hearne Exhibit L. She said there were innocent people wanting DNA testing conducted.

Ms. Brown stated bad acts were committed by the judicial system and the judicial system was covering up their bad acts at the expense of innocent people. 

She said her bill would stop or prevent those acts. She said it would not cost the State or county any money if the inmate paid for their own DNA testing.

http://leg.state.nv.us/74th/ Interim_Agendas_
Minutes_ Exhibits/Minutes/AdminJustice/
IM-AdminJustice-112108-10118. pdf

Nolan’s Attorneys would file the motions to compel DA Dick Gammick to turn over the DNA test results.  

 

On June 10, 2009, our attorneys would see for the first time all of the "available" evidence in Nolan’s case.   ADA Ron Rachow made personal notes in the file that he was not turning over the exculpatory evidence despite a court order ordering him to do so.  

In this file all of our questions were answered.  We always wondered whether or not the Sparks Police Department really turned over the evidence to District Attorney Mills Lane and ADA Ron Rachow.    

Did Rachow turn the evidence over to Shelly O’Neill and, if he did, did she really look at it?  The answer was: RACHOW never turned it over. This proved that O’Neill had committed perjury during the 1991 post-conviction; she could not have investigated Zarsky if she never knew about him. 

 

Shortly thereafter I would obtain a copy of the transcripts from the October 29, 2009, Pardons Board hearing.  Angered by what I read, I could not let this one go.  

On June 24, 2009, I appeared and spoke at the Pardons Board meeting to expose John Helzer for lying to the that Board:

As an Advocate for the Innocent, I am here to ask this Pardons Board to adopt a policy holding those accountable for misleading the Members of the Pardons Board.  The Pardons Board is expected to make a fair, unbiased, informative decision based on the information that is provided to it..

I am now in possession of newly-discovered exculpatory evidence as a result of the litigation that Washoe County Assistant District Attorney, Mr. Helzer, said we needed to litigate the disappearance of the missing cigarette filters that Justice Gibbons asked ADA Helzer about.

During the October 29, 2008, Pardons Board hearing in which my innocent brother, Nolan Klein, was being considered for a pardon, his attorney, Mr. Hager, repeatedly stated to this Pardons Board that Mr. Klein has always maintained his innocence and the Parole Board will not grant parole unless he admits guilt.  

Mr. Hager went on to say -- and provided to you a copy of the television interview of Washoe County District Attorney, Dick Gammick, who publicly admitted -- that he had opened up the DNA and tested it.  Mr. Hager then demanded to know where the DNA test results were.    

Immediately following Mr. Hager's representation of my brother, ADA Helzer spoke to the Pardons Board as to why Mr. Klein should not be given a pardon.  He went on to say, “Now before I came here, it’s kind of interesting, but before I even knew this was going to be considered for a pardon, I was reviewing his file because I wanted to know more about it. I KEPT HEARING THINGS.  I went over and talked to Commander Asher at the Sparks Police Department.”  

He continued on, “And what is amazing to me, is that we have this continued denial in the sense that you are SUPPOSED TO BUY INTO IT."

On June 10, 2009, for the first time, the Defense saw evidence that the prosecutor, Ron Rachow, had hidden from us.  And after 21 years of Nolan being incarcerated, it finally saw the light of day -- with Mr. Rachow’s personal handwritten notes on it.

According to Commander Asher’s report, it would appear to be the theory of the Sparks Police Dept. that Mr. Zarsky committed this crime for which my brother was convicted.  In the documents provided to you, the report on Zarsky, the prime suspect, refers to other crimes and the other victims that they believed Mr. Zarsky committed, too. However, the victims from those crimes had cleared my brother and his car.

Don't you believe that, as an officer of the court, ADA Helzer had a responsibility to speak the truth to you and the truth would be to inform you that while reviewing the file there was evidence that another person had committed the crime thus supporting my brother’s claim of innocence? 

Cleary this information that has been withheld from us for all of these years is in violation of Brady. And ADA Rachow even makes a reference to Brady.

I ask that the Pardons Board adopt a policy, that when an inmate who maintains their innocence and appears before you, the District Attorney MUST DISCLOSE any evidence that was located in the file and inform the Pardons Board whether or not the evidence in the file was actually turned over during Discovery.  If they do not and it is discovered that they knew about this -- and deliberately withheld it -- they must be sanctioned and/or disbarred, and this must be carried out.

 
Tonja Brown

2907 Lukens Lane

Carson City, NV 89706

Placed on the record at the July 13, 2009, 
Sparks City Council meeting:

http://www.rgj.com/apps/pbcs. dll/article?AID+09908140430

Sparks City Council Members,

 

 As an Advocate for the Innocent, I base my request for the following.  I ask that you place on your upcoming agenda to discuss a future oversight policy regarding the Sparks Police Department’s evidence and the way it is handled when it is turned over to the District Attorney’s Office.  I ask that the policy be that the Defense must be provided a copy of the list of evidence that was provided to the District Attorney Office. 

We must put in place safeguards for those who have maintained their innocence, and in all fairness, that a defendant receives a fair an impartial trial.  The innocent should not have to wait years, if not decades, because of an honest mistake that was made with regard to the evidence -- or it being intentionally withheld to get a conviction by an overzealous prosecutor.  

There are no laws that preclude a law enforcement agency from providing the Defense with a copy of what was provided to the District Attorney’s office. Nor should there be.

I base this information on what has come to light after 21 years.  Recently, a Washoe County District Court judge has ordered District Attorney Dick Gammick to turn over the entire file in Mr. Nolan Klein’s case.   

Mr. Klein has always maintained his innocence and his defense was based on MISTAKEN IDENTITY, that someone else had committed the crime.  We now know that there have been more innocent people wrongfully convicted through eyewitness testimony than any and all other factors combined.  

It now appears that ADA Ron Rachow purposely withheld from the Defense all of the exculpatory evidence in this case.  Including Commander Steve Asher's police report attached on their prime suspect, one Mr. Ricky Lee Zarsky.  

This report, along with several other pieces of evidence that was turned over by the Sparks Police Department in 1988, never made it to trial because Ron Rachow withheld this evidence.

For 21 years Washoe County District Attorneys have kept this secret buried -- until now. ADA Mr. Helzer even went to the Pardons Board knowing that this information was withheld from the Defense and he said nothing. 

However, he went so far as to state that he spoke to Commander Asher about this case.  On July 1, 2009, I had a long conversation with Commander Asher.  At first Commander Asher stated to me that he has not talked about this case since the late 1980s or 1990s, since trial. 

I asked Commander Asher why he never mentioned Mr. Zarsky during the trial?  He said because he wasn’t asked.  When I asked if he had spoken to Mr. Helzer, he said “NO”.  He then asked me why would he be speaking to Mr. Helzer?  

I then informed him about what Mr. Helzer said at the Pardons Board.  Commander Asher went from NOT ever speaking to Mr. Helzer about this case to him, to not recalling whether or not he did or didn’t speak to him about Mr. Klein.

I ask the Sparks City Council to implement a policy for the Sparks Police Department that when they turn over evidence to the District Attorney, that they also provide to the Defense a copy of what was turned over to the DA.  This will prevent any chance of an honest mistake being made, or malicious intent.  Then it will be left up to the court to decide what is, or is not, admissible for trial.

 

I also ask that you please notify me of the upcoming agenda so that I may be present and provide you with any other documents that may be needed in support of this new policy. 

 

Respectfully,

 

Tonja Brown

2907 Lukens Lane

Carson City, NV 89706

As I continued on with our fight to bring out the corruption that has been going on within our judicial system, Nolan’s health would decline.  Nolan would constantly complain about the pain he was in and how he wasn’t being treated for his medical problems since his transfer in 2008 over to Warm Springs Correctional Center in Carson City, NV.   In July, 2009, I finally had to contact the Director of Corrections. Nolan was then transferred back to the Regional Medical Center.  

The night Nolan had called me to say he was being transferred back to RMF, the Federal Court had ruled in favor of his suit in Nolan Klein v. Connie Bisbee and it was going to trial.

 

Within 2 weeks of Nolan’s return back to RMF, he had started his first treatment for his hemochromatosis. This was discovered in November, 2007, when he had to undergo interferon treatment for his failing liver. Nolan said he felt wonderful.  This disease is a life threatening disease if it goes untreated, and it was untreated for at least 20 months. 

Within a few days Nolan would be rushed to our local hospital.  He was in critical condition.  He had lost over half of his blood. Again he survived.  However, his condition continues to decline.  

(During the course of his interferon treatment for his liver he had contracted MRSA, the "Superbug".   It was a very difficult time for all of us.  I was told to prepare myself that he would not make it through the weekend, but, thankfully he did. The interferon was permanently stopped.)  

 

On August 19, 2009, I wrote this to the Director of Public Safety:

It has come to my attention that Commander Mr. Steven Asher of the Sparks Police Department is resigning in order to take a state job as an infrastructure officer with the State Fusion Center.   I must inform you of the following based on my personal experience with what I know about Mr. Asher.  I believe as a concerned citizen and as a taxpayer whose taxes will be paying his salary, that I have a valid issue as to why Mr. Asher SHOULD NOT BE GIVEN THIS JOB!   

His previous actions in the course of his professional duty scares me and should you, too, since he will be working for your office.

This is the link to information that then-Officer Steven Asher and the Washoe County District Attorneys knew about 21 years ago and ADA Ron Rachow purposely withheld from the defense.  

Steven Asher never said a word about this during his testimony.  In fact, his own testimony as to his credibility raises HUGE CONCERNS. 

During my July 1 conversation with Commander Asher, I asked him, "During your testimony in Mr. Klein's case, why didn't you tell the jury that you were the one who found the prime suspect in this case and it wasn't Mr. Nolan Klein?"  He said, "Because, I wasn’t asked."   

This is unacceptable for anyone to withhold information that they know about, especially, when an innocent's man's life hangs in the balance.  There is no doubt in my mind that Mr. Steven Asher would continue to do as he did in this case if put in a similar situation.   As a taxpayer I do not want my taxes paying his salary.

I ask that you reconsider Mr. Asher's position and seek someone who is more suitable for the position of infrastructure officer.

Below are the letters that have been placed on the record during the June 24, 2009 Pardons Board Meeting, and the July 13, 2009 Sparks City Council Meeting.  I have also provided you the links to evidence pertaining to Commander Steven Asher that were placed on the record during the June 8, 2008, meeting of the Advisory Commission on the Administration of Justice. 

I have provided you an attachment of the sworn testimony of Officer Steven Asher that questions that his credibility.  This, too, was placed on the record at the July 13, 2009, Sparks Council meeting.  As you read Officer Asher's own testimony from the January, 1989, trial of Nolan Klein, you can see just how easily Officer Asher's testimony by the prosecution changed under cross examination by the defense. I have provided to you the police report on the prime suspect that Officer Asher found the day after the crime.  

This, too, was withheld from the defense and jury for all of these years by the ADA Ron Rachow.  

We must remember that Mr. Asher never said a word about this other man during his entire testimony, even when Mr. Klein's defense was being based on a case of MISTAKEN IDENTITY. 

Respectfully,

 

Tonja Brown

2907 Lukens Lane

Carson City, NV 89706

[Material here is being evaluated and will be returned for display at a later time.]

That may very well be the case with Rachow.  But one juror said to me in 1994, when the Nevada Supreme Court dismissed Nolan's appeal, that the Court had no right to say that the outcome would not have been any different had jurists known about Zarsky; it very well could have made a difference, and they had the right to know about it. 

 

As of this writing (August, 2009) Nolan’s health has declined and we have come to the conclusion that he will die in prison before he ever sees his freedom.

I will continue to bring the truth out about the injustices that have been perpetrated against my innocent brother, Nolan Klein.

 

~ Tonja Brown, Advocate for the Innocent

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